People v. Lazenby

Opinion

GATES, Acting P. J.

Jimmy Lee Lazenby appeals from the judgment (order granting probation) entered following a jury trial which resulted in his conviction for possessing cocaine base for sale (Health & Saf. Code, § 11351.5). He contends:

“I. The court committed reversible error in instructing the jury that possession for the purpose of sale of cocaine base (H. & S. 11351.5)

[1844]

includes an exchange for favors, services, goods or other non-cash benefits. II. The court’s failure to rule on appellant’s motion for new trial requires remand to the trial court for further proceedings consistent with

People

v.

Stewart

(1985) 171 Cal.App.3d 388, 395-396.”

At approximately 6:45 p.m. on February 13, 1988, Los Angeles County Sheriff’s deputies executed a search warrant at the residence occupied by appellant and owned by his uncle. As the officers approached they observed appellant, who was standing in front of the garage, drop a silver foil bindle on the ground and then kick it under a vehicle parked in the driveway. It was found to contain 3.41 grams of cocaine base divided into 36 “rocks” of various sizes, having a street value of $5, $10, or $20 each, and a total value of $350 to $400. Appellant also had $74 in his possession but no paraphernalia with which to ingest cocaine.

Inside the residence in appellant’s room, the deputies recovered a small hand-held scale similar to those used to weigh small amounts of narcotics.

In defense, appellant denied any knowledge of either the contraband or the scale. He acknowledged his awareness that “other people” were selling drugs from his uncle’s house but averred he did not “agree with that kind of activity.” Since the People interposed no objection he was also allowed to introduce a bit of self-serving hearsay. That is, he asserted that while he was being transported to jail, he told one of the deputies “I don’t fool with that stuff.” Allegedly the deputy had replied, “Yeah, I know. You don’t smoke, or nothing like that. . . . But I think you handle a lot of cocaine for the girls.” When asked what girls the officer was talking about, appellant responded, “Well, there are girls that—will—do things for drugs.”